Man gets 10-year sentence for possessing unlicensed firearm

DNA evidence cited in judge-alone trial

A man who was found guilty in November of possessing an unlicensed firearm was sentenced Thursday to 10 years’ imprisonment.

The incident leading to the charge against Ray Kennedy Smith occurred near a West Bay nightclub in July 2011, when Smith was 18.

Justice Charles Quin found him guilty after he pleaded not guilty and elected trial by judge alone.

In his sentencing remarks, Justice Quin shared portions of a social inquiry report and the plea in mitigation by defense attorney Prathna Bodden. Smith, now 20, was described as a respectful son, a supportive partner in a stable relationship, a good father to his young child, and a steady and hard-working employee. Interviews suggested that any problems he got into arose from bad company. A risk assessment indicated that his chance of re-offending was high because of his choice of companions.

Evidence during the trial was that police officers on patrol saw three males outside a West Bay nightclub. After the police vehicle pulled into the parking lot, one of the men walked off to the side of the building and then returned to join the other two. One of the officers smelled ganja, so a search of the men was requested.

When Smith was spoken to, he indicated he had left the others to urinate.

One of the officers thought the time Smith was gone was too short for that activity, so he went to the area with his flashlight to do a ground search because he suspected illegal drugs. Behind an air-conditioning unit he saw the pistol grip of a firearm under a ski mask and gloves.

The officer said he did not touch the gun until after a scene-of-crime officer took photographs. The 9mm Smith and Wesson contained five rounds of ammunition. Examination by a DNA expert showed a partial DNA profile on the interior of one of the gloves. The expert gave evidence that Smith could not be excluded as a contributor to that partial profile. The chance that an unrelated person from the general population could be included as a contributor to the profile was one in every 1.4 billion individuals.

Other partial DNA profiles on the gloves were inconclusive. There was no identifiable DNA on the gun nor any fingerprints.

Justice Quin said Smith’s DNA in the glove could not by itself establish that he was guilty of possessing the firearm, but he found the circumstantial evidence to be powerful.

He noted that Smith had chosen not to give evidence and not to call any evidence. In this way he did not take the opportunity to present any reason for his DNA matching the DNA on the glove. He did not take the opportunity to explain his movements.

Justice Quin emphasized that Smith’s failure to give evidence did not prove the case against him, and the burden of proof remained with the prosecution, as put forward by Crown counsel Candia James.

But Smith’s failure to give evidence meant that there was nothing before the court that was capable of contradicting, undermining or explaining the evidence against Smith.

“Given all the evidence presented by the prosecution in this case, I find that the only sensible explanation for the defendant’s failure to give evidence is that he had no answer to give, or none that would stand up to cross-examination and scrutiny,” Justice Quin said. Smith’s failure to give evidence did add weight and support to the Crown’s case, he concluded.

He noted that Smith was the only one of the three men who asked to be allowed to go back inside the bar to get a drink after one of the officers left to search the side of the building. The compelling inference that could be drawn was that Smith knew the gun would be found.

The judge accepted that when the three men were questioned about the gun, the other two vigorously denied ownership “while the defendant remained silent and was observed by the police officers to be sweating profusely.”

Those facts and Smith’s failure to give evidence led the judge to the inescapable conclusion that it was Smith who had put the gun behind the A/C unit and, in doing so, was in possession of it.